On October 27, 2004, the Wisconsin State Employees Union, AFSCME,
Council 24, AFL-CIO,
Local 509, hereinafter the Complainants, filed a complaint with the Wisconsin Employment
Relations
Commission wherein they alleged that the Respondent State of Wisconsin, through the
actions of the
Wisconsin Department of Corrections, had committed unfair labor practices within the
meaning of Secs.
111.84(1)(a), (b), (d) and (e), Stats., by refusing to bargain regarding the Food Service work
schedule at
the Wisconsin Secure Program Facility ­ Boscobel, by directly negotiating with
employees represented by
Complainant, and by the unilateral implementation of changes to the parties' collective
bargaining agreement
regarding scheduling of paid leave. On February 1, 2005, the Respondents filed an answer
wherein they
denied they had committed unfair labor practices by their actions and raised certain
affirmative defenses,
including that Complainants had failed to exhaust their contractual remedies.

No. 31193-A

Page 2

Dec. No. 31193-A

The Commission appointed a member of its staff, David E. Shaw, to make and issue
Findings of
Fact, Conclusions of Law and Order in the matter. Hearing was held before the Examiner
on March 3,
2005 at the Wisconsin Secure Program Facility in Boscobel, Wisconsin. A stenographic
transcript was
made of the hearing. At hearing, Respondents moved for deferral of the complaint to
arbitration, but did
not pursue their motion after the Examiner deferred ruling on it. The parties completed
submission of post-hearing briefs by June 27, 2005.

Based upon consideration of the evidence and the arguments of the parties, the
Examiner makes
and issues the following Findings of Fact, Conclusions of Law and Order.

FINDINGS OF FACT

1. The Complainant, Wisconsin State Employees Union, AFSCME, Council 24,
AFL-CIO,
hereinafter WSEU, is a "(l)abor organization" as that phrase is defined by §111.81(2),
Wis. Stats., and as
that phrase is used throughout the State Employment Labor Relations Act (SELRA), with its
primary office
located at 8033 Excelsior Drive, Suite "C", Madison, Wisconsin 53717-1903. At all times
material
hereto, WSEU has been the exclusive bargaining agent for a number of state employees
whose positions
were previously allocated by action of the Commission to certain statutorily-created
bargaining units. The
Executive Director of the WSEU is Martin Beil.

Local 509, hereinafter the Local, is affiliated with the WSEU and is primarily made
up of
Correctional Officers at the Wisconsin Secure Program Facility, hereinafter WSPF,
Correctional Institution
in Boscobel, Wisconsin, but also includes members who are the Food Service staff at that
facility and are
in the Blue Collar unit.

At all times material herein, Sergeant Gerard O'Rourke has been the President of
Local 509.
Sergeant Craig Tom has been the Vice-President of Local 509, and Roger Lindh, a Cook II
in the facility's
kitchen, has been a Steward for the Blue Collar unit represented by the Local.

2. The Respondent State of Wisconsin, Department of Corrections (DOC),
maintains and
operates the WSPF Correctional Institution at Boscobel, Wisconsin. WSPF houses inmates
who have
been sent there from other State correctional institutions where they have gotten into trouble
at those
institutions. There are no inmate workers at WSPF and all of the work in the kitchen at this
facility is
performed by employees. At all times material herein, Mary Wayne has been the
Correctional
Management Services Director and since February of 2001, Anthony Broadbent has been the
Food
Service Administrator at WSPF. From October of 1999 until February of 2001, Broadbent
was the Food
Service Supervisor at WSPF.

Page 3

Dec. No. 31193-A

3. The Respondent State and WSEU, and its affiliated locals, were parties to a
collective
bargaining agreement, hereinafter Master Agreement, covering the wages, hours and
conditions of
employment of employees in the bargaining units represented by WSEU for the period May
17, 2003 to
June 30, 2003, which agreement the parties agreed to continue in effect during the period in
question. Said
Master Agreement contained the following provisions, in relevant part:

ARTICLE III

MANAGEMENT RIGHTS

3/1/1 It is understood and agreed by
the
parties that management possesses the sole
right to operate its agencies so as to carry out the statutory mandate and goals assigned to
the agencies and that all management rights repose in management, however, such rights
must be exercised consistently with the other provisions of this Agreement. Management
rights include:

A. To utilize personnel, methods, and means in the most appropriate and
efficient manner possible as determined by management.

. . .

ARTICLE VI

HOURS OF WORK

. . .

SECTION 2: Scheduling

6/2/1 Work Schedules

Work schedules are defined as an employee's assigned hours, days of the
week,
days off, and shift rotations.

6/2/2 In those departments where work schedules are fixed or
posted, fixed work
schedules shall be defined as set and recurring without the need to be posted, and posted
work schedules shall be defined as set for a specific period of time, established by the
department, and communicated to employees. Changes in such work schedules shall be
made only to meet the operational needs of the service, which, if requested, shall be
explained and shall not be made arbitrarily. Insofar as possible, a minimum of five (5)
calendar days notice will be provided to the local Union and to employees affected by a
change in such work schedule. Work schedules will not be changed to avoid the payment
of

Page 4

Dec. No. 31193-A

overtime. However, with management approval, employees may voluntarily agree to
changes in work schedules. When the duration of such schedule change exceeds two (2)
weeks, the Union will be notified. The Union shall have the right to file a grievance in
accordance with Article IV commencing at Step One if it feels a work schedule change
has
been made arbitrarily.

I. (BC, AS, T) Negotiate hours of work, work
schedules and overtime
assignments. In the event no agreement is reached, either party may appeal to arbitration
pursuant to the procedures of Article IV, Section 2, Step Three except that the decision
of the arbitrator shall be advisory. If the advisory award is not implemented by local
management, a representative of the department, a representative of the Department of
Employment Relations, and a representative of the Wisconsin State Employees Union,
District Council 24, will meet to discuss the implementation of the award.

. . .

SECTION 28: Operational Need

11/28/1 Definition of Operational Need

Operational need means the needs of the agency that are reasonable (sic)
perceived by management as necessary for the effective, efficient and safe performance
of the agency's mission at any point in time or at any location.

11/28/2 If deviation from the normal shift is made due to
operational needs, the
Employer will provide an explanation to the employee or Union representative upon
request.

Page 5

Dec. No. 31193-A

. . .

4. The Respondent DOC, Division of Adult Institutions, WSPF and WSEU
Local 509 are
parties to a Local Agreement entered into pursuant to Article XI of the Master Agreement
between the
Respondent State and WSEU. Said Local Agreement was effective September 21, 2003 and
continued
in effect for the time in question by the agreement of the parties. Said Local Agreement
contained the
following provisions, in relevant part:

WISCONSIN STATE EMPLOYEES UNION/COUNCIL
24

AND THE STATE OF WISCONSIN DEPARTMENT OF
CORRECTIONS

DIVISION OF ADULT INSTITUTIONS,

WISCONSIN SECURE PROGRAM FACILITY

This Local Agreement is made and made effective September 21, 2003, pursuant to
the
provisions of Article XI of the agreement between the State of Wisconsin and the
AFSCME Council 24, Wisconsin State Employees Union, and between the Division of
Adult Institutions, Wisconsin Secure Program Facility (hereinafter referred to as the
Employer) and WSEU Local 509 (hereafter referred to as the Local) which includes
administrative support unit (ASU), blue collar and non-building trades (BC) security and
public safety (SPS) and technical (T). This Local Agreement shall stay in effect for 90
days after the signing of a new Master Agreement for the purposes of negotiating a new
Local Agreement. The parties may extend beyond that date by mutual agreement.

. . .

Purpose of Agreement

It is the intent and purpose of the parties hereto that this Local Agreement constitutes
and
implements the provisions of the master agreement, between the State of Wisconsin and
AFSCME, Council 24, Wisconsin State Employees Union, AFL-CIO Local #509,
covering the period of the Master Agreement ending June 30, 2003.

The parties acknowledge this local agreement represents an amicable understanding
reached by the parties as a result of the unlimited right and opportunity of the parties to
make any and all demands with respect to the employer/employee relationship which exists
between them relative to the subjects identified in the master agreement for local
negotiations.

Page 6

Dec. No. 31193-A

Authority of Master Agreement

Nothing in this local agreement shall be construed to override any contractual
provision in
the master agreement unless specifically allowed by the terms of the master agreement.

. . .

FOOD SERVICE (BC)

Note: Language in this Food Service Section reflects a 10 hour Workday.

PROVISION FOR OVERTIME

. . .

PROVISION FOR VACATION SCHEDULING ­ To commence by
November 1

Vacations will be available to be scheduled in accordance with the approved numbers
off
per shift. Because the current schedule allows for people to have every other weekend off,
it is understood by the Union and Management that weekends cannot be used to schedule
vacation time.

Round #1

The selection in the first round shall be in at least three (3) day
blocks of scheduled days
worked. Employees may select all or part of any available vacation time they have
accrued, subject to the maximum number of staff allowed off per day per shift.

. . .

5. Since 2002 the Food Service staff at WSPF had been working 10 hour days,
four days
per week, with every other weekend off and they were not permitted to use vacation for the
weekends they
were scheduled to work. In January of 2002, Broadbent had issued a memorandum to the
Food Service
staff noticing a meeting regarding changing their work schedule. Wayne and Broadbent
approached
O'Rourke with a 10-hour day schedule and about the need to go to a 10 hour day in order to
get meals
prepared on time. The facility had gone from contracting out meal preparation to preparing
meals in-house.
Subsequent to the meeting with O'Rourke, Food Service staff were called into Broadbent's
old office with
Wayne and Broadbent present. A voice vote was taken among the staff regarding the 10
hour day
schedule, resulting in approval of the change to the 10-hour day schedule. There were no
exchanges of
proposals or counterproposals in the process.

Page 7

Dec. No. 31193-A

6. Sometime in June of 2004, Broadbent approached O'Rourke and said he
needed to meet
to discuss schedules and they agreed to meet the following week. Subsequently, Broadbent
met with
O'Rourke and Lindh and presented a schedule he had prepared with 8 hour shifts. Broadbent
was asked
what the concern was and he responded that they needed to spread out the coverage and that
with staff
nearing their fifth year anniversary ­ giving them additional vacation, with the 10 hour
day schedule there
was not enough staff to cover the vacations. O'Rourke objected that the proposed schedule
was a "flex
schedule" (employees could be scheduled for an 8 hour shift anytime between the hours of
5:00 and 7:30
p.m. as management determined) and would be in violation of the contract. Broadbent
indicated it needed
to be done. O'Rourke responded that they could not agree to it and Broadbent stated then
they would
go to the "officers schedule" and gave them the proposed schedule. O'Rourke indicated the
Union would
be willing to negotiate the hours. The meeting then ended.

On July 1, 2004, O'Rourke sent Broadbent an e-mail, which
stated, in relevant part:

Tony

Since hours of work are a mandatory subject of bargaining, WSEU Local 509 is
ready to
begin negotiations at your earliest convenience. The bargaining team for Local 509 will
consist of Roger Lindh, Laurie Neuroth, and Myself.

In the master contract, section 6/2/2 it talks about work schedules and scheduling. In
that
section, it states "Changes in such work schedules shall be made only to meet the
operational needs of the service, which, if requested, shall be explained and shall not be
made arbitrarily."

This change in schedule is not being made arbitrarily. This is being done to meet the
needs
of the institution, which was explained to you. If the union has other alternatives, we can
discuss them but there is nothing that says we have to keep the current schedule in the
kitchen.

Gerry, if you'd like to discuss this further you're welcome to contact me. However,
I do
not see in the Master where this has to be negotiated. If I'm wrong, please point out that
section so I may review it.

Page 8

Dec. No. 31193-A

Thanks.

- Shirley

Lindh subsequently gave Broadbent a proposed schedule he had prepared. Broadbent
indicated
he would review it with Wayne and get back to him with a response. Broadbent
subsequently informed
Lindh he had run it by Wayne and it was a "no go".

On July 29, 2004, Broadbent sent O'Rourke an e-mail which stated, in relevant part:

Sgt. O'Rourke, I would like to schedule a meeting for Thursday, August 5, 2004 at
0930
to sit down and discuss the proposed schedule we received. Roger is scheduled to work
that day. Please let me know if this is possible.

O'Rourke did not respond to Broadbent's e-mail.

On August 3, 2004, Broadbent issued the following memorandum to the Food Service
Staff, which
stated in relevant part:

SUBJECT: Meeting

There will be a meeting on Thursday, August 12, 2004 at 0900 in the Wardens
Conference room to talk about a schedule proposed by the Union. Staff that are
scheduled off will be paid for 1 hour of overtime and have the option of working two
hours. If you have any questions please see Tony.

Also on August 3, 2004, Broadbent sent O'Rourke an e-mail which stated, in relevant
part:

Subject: Meeting

Importance: High

Sgt. O'Rourke, I have scheduled a meeting with my staff on Thursday,
August 12, 2004
AT 0900 in the Wardens Conference room to go over the proposed schedule we received
from the Union. I would like to invite you to attend the meeting or you may send another
representative of the Union. We had planned to put the new postings up on August
4th but
postponed it so we could review the proposed schedule and meet with my staff and the
Union. We now have scheduled to post the new keys on August 16th so we
can get them
assigned and give my staff ample opportunity to review their new key before vacation
picks.

Page 9

Dec. No. 31193-A

O'Rourke went to Wayne and asked if they were still going to negotiate the schedule.
Wayne
responded in the negative and that management had a schedule and was going to talk to the
Food Service
staff about it.

7. On August 12, 2004, Wayne and Broadbent held a meeting of the Food
Service staff at
WSPF. Present were Wayne, Broadbent, Food Service Assistant, Laurie Iverson, Local
Vice-President
Craig Tom and the Food Service staff, including Lindh. O'Rourke did not attend the
meeting. The Union
did not object to the meeting being held.

Wayne opened the meeting by explaining the reasons for the need to change the
schedule from 10
hour days to the officer schedule, stating that the 10 hour schedule was too hard on the
kitchen staff, that
it generated too much overtime, resulted in too many call-ins, and that they needed to change
the coverage
in the kitchen. The staff responded that they did not want the officer schedule, as they
would end up
working too many days straight and too many weekends. Wayne responded that they had to
make
changes and asked Tom if he had any suggestions. Tom responded that he was there as an
observer, but
that the Union felt they had to sit down and negotiate schedules and hours of work and asked
if
management was ready to do that. Wayne responded that management did not have to
negotiate hours
of work. There was then an exchange between them, with both claiming there were
provisions in the
contract to support their positions. Wayne then asked Broadbent what he thought.
Broadbent responded
that he was expecting to hear suggestions from the Union and asked Tom if the Union had
any to propose.
Tom responded that the Union did have suggestions and schedules and would produce them,
if and when
they sat down for negotiations with the Union's team, but that this was not the time or place.
Wayne
responded that they needed to get things straightened out quick because staff needed to make
their
vacations picks November 1st. Wayne then asked Broadbent if he would be
willing to take suggestions
from the kitchen staff and he responded in the affirmative. Broadbent then handed out blank
schedule
sheets to the kitchen staff who were present and put them in the mailboxes of those who
were not. The
kitchen staff were told that they had two weeks to submit suggested schedules.

Following the August 12, 2004 meeting with the Food Service staff, O'Rourke and
Tom went to
Wayne and asked if management was going to negotiate with the Union. Wayne responded
in the negative
and indicated they were waiting to get proposals back from the staff. O'Rourke objected that
the Union
represented the employees and management could not negotiate with the employees directly.
Wayne
responded that once they got a schedule that would work, they would implement it.

Three of the kitchen staff submitted proposed schedules: Lindh and his wife and
Sharon Terrel.
Broadbent reviewed these proposed schedules and concluded that the schedule submitted by
Terrel was
the closest to what he felt would be workable. He made a few modifications in that schedule
and on
August 26, 2004 issued the following memorandum to the Food Service staff with the
modified Terrel
schedule attached as the proposed new schedule:

Page 10

Dec. No. 31193-A

Memorandum

DATE:

August 26,
2004

TO: Food Service Staff

FROM: Anthony L. Broadbent, Food
Service Administrator

SUBJECT: Proposed Schedule

Attached is the proposed schedule for Food Service. After our meeting that was held
on
August 12th, there were concerns about the length of time off between
weekends and
working six days straight. I feel this schedule will eliminate those concerns. Below I have
listed how this schedule will work. If you have any questions please see me.

1. It will be on a three week rotation, I have provided you with six
weeks to review

2. The Food Production Assistants (Laurie & Kristen) will
have every other
weekend off.

3. The Cook 2 will have every third weekend off.

4. The Storekeeper will work Monday thru Friday.

5. The Food Production Assistants will not be allowed to pick
vacations on the
weekends worked.

6. The Cook 2's will be allowed to pick vacations on weekends
scheduled

7. Only one staff member will be allowed off for vacations per
day.

8. The 0700-1700 and 0700-1930 positions will need to work
0830-1700 on the
weekends to allow coverage for the dinner meal.

8. On September 8, 2004, a Union/Management meeting was held at WSPF.
Among those
present were O'Rourke, Tom and Lindh as part of the Union's representatives, and Wayne,
Broadbent
and Warden Berge as part of management's representatives. One of the items on the agenda
for the
meeting was the "kitchen schedules". Minutes are kept of these meetings and are reviewed
and signed by
representatives of management and the Local. The minutes for the September 8, 2004
meeting state, in
relevant part:

Kitchen Schedules

Mr. Wayne stated that the new kitchen schedules will be posted on Monday,
September
13. Currently the kitchen has been generating over 100 hours of overtime per period. She
added that all Food Service employees have seen the new schedule and were able to give
their input. G. O'Rourke stated that there should have been a meeting with the Union and
that the Union should have shown the proposed schedule to Food Service staff. Some of
the details of the

Page 11

Dec. No. 31193-A

new schedule shared by T. Broadbent included the following ­ allows for nine
of the
kitchen staff to choose vacation for weekends, Storekeeper is Monday-Friday, and the
Food Production Assistants have every other weekend off. The kitchen currently has one
Cook 1 LTE and possibly will get one more. R. Lindh, who works in the kitchen, added
that the kitchen staff like the new schedule as a whole. He added that the ten-hour days
were too long especially in the heat and with the eight-hour days the longest run will be four
days in a row.

In addition to the comments reflected in the minutes, there was a query from Warden
Berge to
Lindh as to what he thought of the new schedule and Lindh responded as indicated in the
minutes. Warden
Berge also responded to O'Rourke's objection regarding the lack of negotiations to the effect
that it was
an issue that was higher than the institution and he was going by what he was told from
"higher-ups"; that
they would have to agree to disagree.

There were no further discussions between the parties regarding the Food Service
staff schedule.

9. On October 27, 2004, Complainants filed a complaint of unfair labor practices
with the
Wisconsin Employment Relations Commission alleging that by its actions through August 26,
2004,
Respondents had violated Secs. 111.84(a), (b), (d) and (e) of the State Employment Labor
Relations Act
(SELRA).

10. Vacation picks by Food Service staff were made November 1, 2004 for 2005
in accord
with the new schedule. Employees were allowed to pick in 4-day blocks, whereas they had
to pick in 3-day blocks under the 10-hour schedule. The new schedule (the modified Terrel
schedule) was
implemented December 27 or 28, 2004.

11. On November 23, 2004, O'Rourke filed a union grievance at Step 2, of
Article IV, of the
parties' Master Agreement, alleging that:

"The current work schedules for food service staff is the result of negotiations
between the
local union and local management. Management has unilaterally changed the agreed work
schedule of food service staff."

The grievance alleged that management's actions violated the parties' Local
Agreement.

On January 18, 2005, management responded to the grievance with the decision:

"Grievance denied. Mgmt. has met the intent of the contract by trying to include the
union
in discussions about schedule changes needed to meet the needs of the Inst."

Page 12

Dec. No. 31193-A

On January 26, 2005, the Union filed an appeal of the grievance to arbitration. The
Respondent
State has not indicated it would waive any technical objections it might have to arbitrating the
grievance.

12. In 2001 Custodians at WSPF all worked on one shift and management
approached the
Local Union with a proposal to create two shifts, and have half of the Custodians work one
shift and half
work the second shift. The Local did not see a problem with the proposal and held a
meeting of those
Custodians, who are also in the Blue Collar unit, for a vote on the proposal, resulting in
their approval of
the change.

Due to turnover in the custodial staff, in late 2003 management advised the Local
Union that it
could not staff two shifts and was going to have all of the Custodians work on the one shift
again. The
change was made and there was no vote taken among the Custodians. The single shift
schedule has
remained in effect for Custodians since then.

13. The subject of the parties' respective rights and obligations with regard to
changing the
work schedules of the Food Service staff at WSPF is covered by Article VI, Section 2,
subsection 6/2/2
and Article XI, Section 2, subsection 11/2/8, I, and Article XI, Section 28, of the parties'
Master
Agreement.

14. On numerous occasions in the past, the parties proceeded to final and binding
arbitration
of grievances involving management's changing work schedules. These included Arbitrator
Robert
Mueller's July 8, 1981 award, Arbitrator Jay Grenig's August 6, 1984 and August 14, 1984
awards,
Arbitrator John Flagler's November 8, 1994 award, and Arbitrator Christine Ver Ploeg's
October 12,
1996 award, all incorporated by reference herein. In each of those awards management was
found to have
acted within its rights under Article VI of the Master Agreement. Arbitrator Mueller's 1981
award and
Arbitrator Grenig's August, 1984 awards involved Article VI, Section 1, paragraph 84, the
predecessor
to the current Article VI, Section 2, Subsection 6/2/2, in the parties' Master
Agreement. Article VI,
Section 1, paragraph 84 stated:

84 In those departments where work
schedules are posted, changes in such posted
work schedules shall be made only to meet the operational needs of the service and shall
not be made arbitrarily. Insofar as possible, a minimum of five (5) calendar days notice will
be provided to the local Union and to employees affected by a change in the posted work
schedule. Work schedules will not be changed to avoid the payment of overtime.
However, with management approval, employees may voluntarily agree to changes in
posted work schedules. The Union shall have a right to file a grievance in accordance with
Article IV commencing at Step Two if it feels a posted work schedule change has been
made arbitrarily.

Arbitrator Flagler's 1994 award and Arbitrator Ver Ploeg's 1996 award involved the
present
Subsection 6/2/2. Arbitrator Flagler's award upheld a change to the work schedule that was
not intended
to be temporary.

Page 13

Dec. No. 31193-A

15. The change in the work schedule of the Food Service staff at WSPF from the
10 hour days
schedule to the present schedule was made for the purposes of reducing the amount of
overtime hours
being worked by Food Service staff, reducing safety risks to Food Service staff by not
having to work 10
hours or more a day in the kitchen and not having to utilize non-Food Service staff in the
kitchen to fill in
for absent staff, reducing the use of Styrofoam containers, being able to accommodate
employee vacation
schedules, and avoiding the problems of getting staff to fill in on weekends due to the cliques
that had
developed and reluctance to work with employees in the other cliques. These reasons
constitute
"operational needs" and the change was not made arbitrarily or to avoid payment of overtime
within the
meaning of Sec. 6/2/2 of the parties' Master Agreement. Therefore, the Respondent did not
violate the
parties' collective bargaining agreements when it unilaterally changed the work schedule of
the Food
Service staff at WSPF for those reasons.

16. The actions of Wayne and Broadbent at the meeting with WSPF Food Service
staff on
August 12, 2004 in soliciting proposed schedules from the staff constituted individual
bargaining.

Based upon the foregoing Findings of Fact, the Examiner makes and issues the
following

CONCLUSIONS OF LAW

1. Complainants Wisconsin State Employees Union, AFSCME Council 24,
AFL-CIO, and
its affiliated Local 509 are labor organizations within the meaning of Sec. 111.81(12),
Stats.

2. Respondent Department of Corrections is a subdivision of the Respondent State
of
Wisconsin, and is the employer of the Food Service employees at the Wisconsin Secure
Program Facility
at Boscobel, Wisconsin, within the meaning of Sec. 111.81(8), Stats.

3. Hours of work of employees are a mandatory subject of bargaining over which
Respondent
are required to bargain within the meaning of Sec. 111.91(1)(a), Stats.

4. By refusing to bargain with Complainants regarding changing the work
schedule of Food
Service staff at the Wisconsin Secure Program Facility, Boscobel, represented by
Complainants, and by
unilaterally implementing such a change, Respondent State, its officers and agents, did not
refuse to bargain
collectively with Complainant within the meaning of Sec. 111.84(1)(d), Stats.

5. By refusing to bargain with Complainants regarding the change in the work
schedule of
Food Service staff at Wisconsin Secure Program Facility, Boscobel, and by unilaterally
implementing the
change in the work schedule of those employees effective with the beginning of 2005,
Respondents did not
violate the terms of the parties' collective bargaining agreements within the meaning of Sec.
111.84(1)(e),
Stats.

Page 14

Dec. No. 31193-A

6. By holding a meeting on August 12, 2004, of the available Food Service staff
at Wisconsin
Secure Program Facility, Boscobel, represented by Complainants at which Respondents'
officers and
agents solicited employees to submit proposals of work schedules, Respondents engaged in
individual
bargaining with those employees and thereby refused to bargain with Complainants within the
meaning of
Sec. 111.84(1)(d), Stats., and derivatively, violated Sec. 111.84(1)(a), Stats.

Based upon the foregoing Findings of Fact and Conclusions of Law, the Examiner
makes and
issues the following

ORDER

1. The alleged violation of Sec. 111.84(1)(d), Stats., is dismissed as to
Respondents' refusal
to bargain with Complainants regarding change of the work schedule of the Food Service
staff at Wisconsin
Secure Program Facility, Boscobel.

2. The alleged violation of Sec. 111.84(1)(e), Stats., is dismissed
in its entirety.

3. The Respondent, its officers and agents, shall immediately:

(a) Cease and desist from conducting meetings of its
management personnel
and Food Service staff for the purpose of bargaining with those individual employees
represented by Complainants,

(b) Take the following affirmative action which the Examiner finds will
effectuate the purposes and policies of the State Employment Labor Relations Act:

1. Notify employees at Wisconsin Secure
Program Facility at
Boscobel, Wisconsin represented by Complainants Wisconsin State Employees
Union, AFSCME, Council 24, AFL-CIO, and its affiliate Local 509, by posting
the Notice attached hereto as "Appendix A" in the areas where notices for those
employees are posted. Respondents shall take reasonable steps to assure that
said Notice is not altered, defaced, or covered by other material.

Page 15

Dec. No. 31193-A

2. Notify the Wisconsin Employment Relations Commission within
twenty days of the date of this Order as to what steps the City has taken to
comply with this Order.

Dated at Madison, Wisconsin this 23rd day of February, 2006.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

David E. Shaw,
Examiner

Page 16

Dec. No. 31193-A

APPENDIX "A"

NOTICE TO ALL EMPLOYEES OF

THE STATE OF WISCONSIN
DEPARTMENT

OF CORRECTIONS, WISCONSIN SECURE
PROGRAM

FACILITY CORRECTIONAL INSTITUTION

AT BOSCOBEL, WISCONSIN,
REPRESENTED

BY WISCONSIN STATE EMPLOYEES UNION
AND LOCAL 509

As ordered by the Wisconsin Employment Relations Commission, and in order to
remedy a
violation of the State Employment Relations Act, the State of Wisconsin and its Department
of Corrections
notify you of the following:

WE WILL CEASE AND DESIST from conducting meetings of employees for
the purposes of collectively bargaining directly with individual employees represented by
the Wisconsin State Employees Union, and its affiliated Local 509, except for those
employees who have been designated by those Unions as their representatives.

By_____________________________________________

Warden, WSPF Correctional Institution,

Boscobel, Wisconsin

THIS NOTICE MUST REMAIN POSTED FOR THIRTY (30) DAYS
FROM THE DATE
HEREOF AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.

Page 17

Dec. No. 31193-A

STATE OF WISCONSIN (DEPARTMENT OF
CORRECTIONS)

MEMORANDUM ACCOMPANYINGFINDINGS OF FACT,

CONCLUSIONS OF LAW AND
ORDER

POSITIONS OF THE PARTIES

Complainants allege the following in their complaint:

10. Management's refusal to bargain on a mandatory subject of bargaining
­
the WSPF food service work schedule ­ is a prohibited practice and is a violation of
§§111.84(1)(a), (b), (d) and (e), Stats., and §111.91, Stats.

11. Management's direct negotiations with employees while bypassing the
union is a prohibited practice and is a violation of §§111.84(1)(a) and (b), Stats.

12. The unilateral implementation of changes to a bargained agreement
between the parties regarding scheduled paid leave is a prohibited practice and is a
violation of §§111.84(1)(a), (b), (d) and (e), Stats.

However, Complainants have not further addressed the allegations of violations of
Sec. 111.84(1)(b), Stats., and the allegations are deemed to have been dropped.

Respondents filed an answer denying they had committed the alleged violations of
SELRA, and
asserted: (1) That allegations taken by Respondents to change the work schedule "were in
compliance with
the contract and the law"; (2) "that Complainants have failed to exhaust their contractual
administrative
remedy ­ the grievance procedure leading to arbitration ­ and therefore this
action must be held in
abeyance until such time as Complainants have done so." Respondents then requested that
the complaint
be dismissed in its entirety.

At hearing, in response to Complainants' submission as evidence a grievance and a
request for
arbitration the Complainants had filed (Complainants' Exhibit No. 1), Respondents moved to
defer the
matter to arbitration. However, after the Examiner indicated he would defer ruling on
Respondents' motion
until following the parties' post-hearing briefs, Respondents objected to deferring ruling on
their motion and
did not pursue or address the matter further. As is discussed below, the Examiner has
concluded that, as
both parties have addressed the merits of the alleged violations, both at hearing and in their
briefs, and
Respondents have not further pursued their motion to defer, nor objected further to the
Commission's
asserting its jurisdiction to decide the violation of contract allegation, it is appropriate for the
Examiner to
address the merits of the alleged violations.

Page 18

Dec. No. 31193-A

Complainants

Complainants note that Section 111.91(1), Stats., provides that hours "are a subject
of
bargaining
under SELRA" and asserts that the State unlawfully refused to bargain over the WSPF Food
Service
schedule. Local 509 President, O'Rourke, notified the Food Service Administrator at
WSPF, Broadbent,
that the Union was prepared to negotiate the work schedule of the food service staff. The
following day,
Human Resources Director at WSPF, Shirley Gates, informed O'Rourke that the State could
unilaterally
change the schedule of the kitchen staff as long as the change was done to meet the
"operational needs"
of the employer. Despite the Union's attempts to bargain, the State unilaterally changed the
WSPF Food
Service schedule.

Respondents mistakenly assert that Section 6/2/2 of the Master Agreement constitutes
a waiver
by the Unions of their statutory right to bargain over schedule changes. The evidence shows
otherwise.
Section 6/2/2 entitles the State to make reasonable short-term, temporary changes to the
schedule of
bargaining unit members, if it can show that the change is necessary. However, it does not
constitute a
waiver of the Unions' statutory right to bargain fixed work schedules. To find such a
waiver, the evidence
must show in a clear and unmistakable manner that the party intended to weigh its statutory
right. To find
a contractual waiver, there must be specific contractual language clearly establishing such a
waiver.
Although a union may elect to waive the statutory right, the contractual language must evince
a clear and
unmistakable waiver by the union; a waiver does not exist when there is ambiguity regarding
the parties'
intent. Honeywell International, Inc. v. NLRB, 253 F.3d 125, 133-134 (D.C. Circuit,
2001).
Whether a party waived the statutory right when it agreed to a contractual term is a question
of intent.
Thus, evidence may be considered indicating intent in order to determine whether a
contractual term
constitutes a waiver. Consideration of bargaining history and the parties' prior
interpretations of a
contractual provision may be used to determine that intent. O.C.A.W. Local 1-547 v.
NLRB, 842 F.2d
1141, 1144 (9th Cir., 1988).

The evidence shows that the Unions did not waive their statutory right to bargain
over
work
schedules. While Section 6/2/2 provides several restrictions on management's right to
change fixed work
schedules, it is not a waiver of the right to bargain over schedule changes. In a 1996
grievance arbitration,
the State emphasized that under Section 6/2/2 it has the right to temporarily change fixed
work schedules.
State of Wisconsin (Arbitrator Ver Ploeg, 1996). The State argued in that case that on
countless past
occasions it had used Section 6/2/2 to make changes to fixed schedules "based upon
operational needs
which are identical" to the short-term, temporary operational needs it claimed in that case.
Section 6/2/2
restricts the State's ability to make short-term, temporary work schedule changes, and it may
only make
such changes when they are necessary to meet the "operational needs of the service" and
when they are
not made arbitrarily and not for the purpose of avoiding the payment of overtime and with
the proper
notice. However, Section 6/2/2 must be interpreted in conjunction with Section 11/2/8
(I), which explicitly
recognizes a duty to bargain over work schedule changes. It is axiomatic that the meaning of
the
contractual provision is dependent upon its context. Moreover, where the whole can be read
to give
significance to each part, that interpretation is

Page 19

Dec. No. 31193-A

preferred. Citing Elkouri and Elkouri, How Arbitration
Works, p. 462 (6th Edition). Even if the Examiner
accepts the State's reading of Section 6/2/2, Section 11/2/8 (I), expressly recognizing the
duty to bargain
over work schedules, at the very least creates an ambiguity, precluding any finding of a clear
and
unmistakable waiver of the right to bargain over schedules.

Further, bargaining resulted in the 10-hour work day for the WSPF Food Service
employees, and
this agreement is explicitly referenced in the parties' Local Agreement. The WSPF Local
Agreement
covering the period ending June 30, 2001, contained no reference to the Food Service
employees' work
schedule, however, the successor Local Agreement explicitly notes, "Language in this Food
Service
Section reflects a ten-hour workday." This language was added to the parties' Local
Agreement after they
collectively bargained the 10-hour workday for the food service staff. This bargaining
history shows that
the Unions have not waived their statutory right to negotiate work schedules. To hold
otherwise would
result in the effective deletion of this contract term from the Local Agreement and would
also require the
parties to re-negotiate the vacation schedule which is based upon a 10-hour shift. The State
cannot be
permitted to unilaterally eliminate a written contract provision.

Complainants also assert that the State unlawfully bypassed the Union when it
solicited input
regarding work schedules directly from bargaining unit members. Bargaining directly with
individual
employees constitutes an unlawful refusal to bargain collectively with the majority
representative of
employees. City of Milwaukee, Dec. No. 26354-A (McLaughlin, 4/92). Individual
bargaining is
prohibited by Section 111.84(1)(d), Stats., which makes it a prohibited practice for the State
to refuse to
bargain collectively on matters set forth in Section 111.91(1), Stats., the latter
providing that "hours and
conditions of employment" are matters subject to bargaining. Regardless of whether or not a
subject
covered in the Agreement is a mandatory subject of bargaining, an employer may not
circumvent the
majority representative of bargaining unit members, and even when a union waives its
statutory right to
bargain, the employer nevertheless does not acquire the right to bargain with individual
employees instead
of their majority representative. City of Milwaukee, supra. In
City of Milwaukee, the city sent a
notice to employees requesting their attendance at a meeting at which the city intended to
solicit input from
all interested persons concerning expansion of the substance abuse testing program, and the
examiner found
that the notice "goes as far as to solicit presentation of 'recommendations as a program to be
developed
and implemented.'" Similarly, in this case, the State circumvented the Union by turning
down the latter's
request to bargain and then soliciting schedule recommendations from individual employees.

Complainants conclude that the State violated Section 111.84(1)(a), (d) and (e) of
SELRA by
unilaterally changing the work schedule of the WSPF Food Service employees.
Complainants request as
a remedy that the Commission find that the State committed the prohibited practices alleged;
that it rescind
the schedule changes and make employees whole for all lost wages and benefits; that it
prohibit similar
types of unlawful conduct in the future; that it require the posting of appropriate notices; and
that it require
such further and other relief as may be deemed appropriate.

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Dec. No. 31193-A

Respondents

The Respondents assert that the burden is on the Complainants to prove by the clear
and
satisfactory preponderance of the evidence that they have violated SELRA based on the
totality of the
conduct. When dealing with an alleged violation of Section 111.84(1)(a), Stats.,
Complainants must
"demonstrate that the complained-of conduct was 'likely to interfere with, restrain or coerce'
Union-represented employees in the exercise of rights protected by Section 111.82,
Wis. Stats." State of
Wisconsin, Dec. No. 27708-B (WERC, 1996). Even if the conduct has a tendency to
interfere with
protected activity, there is no violation of SELRA if the acts are prompted by a legitimate
business reason.
State of Wisconsin, supra. For a derivative violation there must
be proof by the requisite standard that
a violation of other provisions of Section 111.84(1) occurred. For an alleged violation of
Section
111.84(1)(d) and (e), Stats., there must be proof that bargaining was required and there was
a refusal to
do same and a breach of a contractual provision, respectively.

Respondents assert that under the circumstances, they could change the work schedule
without
negotiations. Changes in work schedules normally are mandatory subjects of bargaining that
can be waived
by contract. A union can waive bargaining over a matter if the waiver is "clear and
unmistakable". Racine
Unified School District, Dec. No. 18848-A (WERC, 6/82).

The Master Agreement, not the Local Agreement, controls the obligations as to the
changing of
the work schedules. The Local Agreement provides, at page 2, that the terms of the Master
Agreement
govern unless the Master Agreement specifically states to the contrary. Thus, to determine
what is required
under the contract when changing a work schedule, it is the Master Agreement, not the Local
Agreement,
that must be considered. There is no language in the Local Agreement that addresses
schedule changes
or that specifically provides that the Local Agreement controls in determining obligations
when a work
schedule needs to be changed. Thus, the Master Agreement is the source of any obligations.
There are
four provisions of the Master Agreement that are relevant in this case. First, is Article
3/1/1, Management
Rights, which provides that management rights must be exercised consistent with other
provisions of the
Agreement. Subsection A of that provision provides management with the right "to utilize
personnel,
methods, and means in the most appropriate and efficient manner possible as determined by
management."
Arbitrators have found that the State's ability to unilaterally change work schedules based on
"operational
needs" is an exercise of its management rights. The second provision is Article 11/2/8(J),
which requires
negotiations for hours of work and work schedules and sets forth the process to obtain an
advisory opinion
from an arbitrator. However, the critical provisions are Articles 6/2/1 and 6/2/2, the former
defining work
schedules to clearly include the schedule which is the subject of this action, and the latter,
which defines
fixed or posted work schedules. The Article makes no distinction between the two when it
comes to
making changes. Article 6/2/2 also sets forth the language that is critical in this case:

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Dec. No. 31193-A

"Changes in such work schedules shall be
made only to meet the operational needs of the
service, which, if requested, shall be explained and shall not be made arbitrarily."
(Emphasis added).

The phrase "such work schedules" can only refer to "work schedules" defined in
Article 6/2/1, which
includes fixed and posted. There is no language that limits schedule changes to being
short-term and/or
temporary. Had that been the parties' intent, they most assuredly would have used language
to that effect.
The language of 6/2/2 affirmatively makes clear that permanent schedule changes are
included. The
provision has a different notice requirement for a change that is less than two weeks, and
those that are
more than two weeks. Changes lasting more than two weeks can hardly be labeled as
short-term or
temporary. To the contrary, the language speaks to long-term, permanent schedule changes.
Additionally,
the schedule changes can be made for "operational needs", which could be short-term or
could be long-term/permanent. Management is entitled to keep the schedule in place for as
long as the "operational
needs" exist. Thus, any change, permanent or temporary, can be made based on the
"operational needs"
exception of Article 6/2/2. The final provision is the definition of "operational needs" in
Article 11/28/1:
"The needs of the agency that are reasonable perceived by management as necessary for the
effective,
efficient and safe performance of the agency's mission at any point in time or at any
location."

Thus, based on the clear and unmistakable language of the Master Agreement, the
parties have
agreed to an exception to the duty to bargain a change to the work schedule. Changes to
work schedules
that involve the "operational needs" of the service do not have to be negotiated and can be
unilaterally
implemented upon notice and explanation. Thus, if the facts establish that "operational
needs" existed,
Respondents were under no duty to bargain and there can be no refusal to bargain and there
can be no
unlawful, unilateral implementation.

The "operational needs" exception has been in the parties' Agreement since at least
1980, and
the language in Article 6/2/2 has been arbitrated many times with the same result as to the
meaning of
the "operational needs" language. In State of Wisconsin v. WSEU, Arbitrator Mueller
(1981),
Arbitrator Mueller went through an exhaustive analysis of bargaining history in fashioning
his decision.
The case involved the unilateral change in work schedules under the "operational needs"
exception that
is identical to that currently contained in Article 6/2/2 of the Master Agreement.
There was no
bargaining whatsoever over the change and in finding that the State did not violate the
contract,
Arbitrator Mueller concluded that the "operational needs" exception governed. He concluded
that a
change in a work schedule to minimize overtime was an "operational need", notwithstanding
the
language in Article 6/2/2 that states that "work schedules will not be changed to avoid
payment of
overtime." Arbitrator Mueller concluded that public sector employers are obligated to
operate as
efficiently as possible in the interest of the public taxpayer and that operational needs are
therefore
interpreted to include the consideration of minimizing overtime. Arbitrator Mueller's
decision has been
followed in numerous subsequent arbitrations where the State made a unilateral change in
work
schedules without negotiations, based on the "operational needs" exception of the Agreement.
Citing,
WSEU v. State (Grenig, 8/6/84); WSEU v. State

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Dec. No. 31193-A

(Grenig, 8/14/84); WSEU v. State (Flagler, 11/8/94); and WSEU v. State (Ver Ploeg,
10/12/96). In
none of those cases was it found that the State was required to bargain, and in all of the
cases the arbitrator
upheld the State's right to unilaterally change work schedules without bargaining based on
the application
of the "operational needs" exception. In Grenig's 8/14/84 Award, he analyzed all of the
arbitrations to date
that involved the "operational needs" exception, including the Mueller decision. He
concluded that as the
agreement in question was entered into by the parties following the Mueller Award, and
contained language
identical to that construed by Arbitrator Mueller, this would indicate there is no basis for
disturbing
Arbitrator Mueller's interpretation of the language. That case involved language identical to
that found in
the Master Agreement, page 109, paragraph I ­ "Negotiate Hours of Work, Work
Schedules. . ."
Arbitrator Flagler also found it appropriate to follow the well-established doctrine of
deferring to prior
arbitrators who have ruled on essentially a similar issue between the parties under a common
agreement.
That case involved a contract that had language identical to the Master Agreement, page 109,
paragraph
J.

These arbitrations are applicable and relevant to this proceeding for several reasons.
First, these
arbitrations involved the same contract language agreed to by the parties that is found in the
present
Agreement and are unanimous in their conclusions. The instant action alleges a breach of
contract, which
is precisely what arbitrators would address and have addressed. Thus, those decisions must
be considered
binding in this action. Second, the relevant arbitral law confirms the clear language of the
contract that
"operational needs" is an exception that allows the State to unilaterally change work
schedules without
negotiations. Third, those decisions leave no doubt that changes in schedules to minimize
overtime are perse, "operational needs" that permit a unilateral change in a work
schedule without negotiations.

Submission of a matter to arbitration has the dual purpose of resolving the case at
hand and
providing guidance for the future in similar cases. This is especially the case when the
arbitrations and the
unfair labor practice involve the same Union, the same language of the Agreement and the
same issue.
Accordingly, the preceding arbitrations govern the outcome of this case.

Respondents assert that the evidence establishes that "operational needs" were present
for the
schedule change. Based on the previously-discussed arbitrations, the minimizing of overtime
is a perse,
"operational need", constituting an exercise of the State's management rights under Article
3/1/1, (A).
Thus, if minimizing overtime was the only reason for the schedule change, it would itself
warrant a unilateral
change in the schedule. However, there were more reasons. The evidence establishes that
Broadbent
informed the Local in June of some of the reasons a schedule change was needed, and that
Wayne set forth
the reasons for the needed change in the schedule at the August 12, 2004 meeting with the
Food Service
staff.

The facts demonstrate that management reasonably perceived "operational needs" that
were neither
pretextual nor arbitrary. First was the overtime. Both Broadbent and Wayne testified that
excessive
overtime prompted the decision to change the work schedule. There

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Dec. No. 31193-A

can be no dispute that there was in fact excessive overtime for the Food Service
workers. Food Service
staff accounted for 88% of non-security overtime and averaged over 60 hours of overtime
per pay period.
The second reason was the safety factor. The kitchen was hot and there was no air
conditioning and Food
Service staff were working 10 hours a day or more in the kitchen. Lindh conceded that 10
hour days were
too long, especially in the heat. Also, because of the staff shortage and Food Service
employees calling
in sick or being on vacation, it was necessary to use non-Food Service employees to assist in
the kitchen.
Lindh again conceded that this could cause a safety concern. There were also concerns over
scheduling
vacations under the 10-hour schedule. Many of the employees had been at the institution
since its opening
and were about to reach the five-year level, which would entitle them to an extra week of
vacation. Under
the old schedule, this was a problem because employees worked every other weekend and
could not utilize
vacation when they were scheduled to work, which would leave them with more vacation
time, but little
opportunity to use it. Another concern was the "weekend versus weekend" problem.
Employees worked
specific weekends like a team, and if someone could not work that weekend, management
had problems
getting another employee who did not work on that team to come in, as they were reluctant
to work with
the other clique and were "unavailable" when it came time for overtime on a shift other than
their clique.
Last, Broadbent testified that the use of Styrofoam products was expensive, and by changing
the schedule,
the institution could save money because there would be enough staff to do the dishwashing
so that
Styrofoam products would not be necessary.

The new schedule was necessary and it was uncontradicted that the new schedule
reduced
overtime substantially, the overall safety and welfare of the WSPF staff was enhanced, and a
safer work
environment was accomplished. Further, the schedule change allowed the employees a better
opportunity
to take the extra vacation time they would be earning. The environment for the weekend
clique problem
was eliminated and the reduction in the use of Styrofoam was accomplished via the new
schedule, as there
was a full staff which permitted that dishwashing could be done.

Respondents assert that they did not engage in any clandestine effort with respect for
the need to
change the schedule. The Complainants were given many opportunities to provide input, but
chose not to
do so. Broadbent notified the Local of the need for the change and when the Local wanted
to meet to
discuss these, Broadbent did so. Management gave the Local two suggested changes to
consider, neither
of which the Union found desirable. Lindh provided a suggested schedule to Broadbent.
When
Complainants demanded negotiations, management responded that under the "operational
needs" language
in the contract, there was no obligation to bargain. However, Broadbent wanted to discuss
Lindh's
proposal with O'Rourke, but the latter would not accept the invitation and went over
Broadbent's head
to Wayne. Complainants were invited to the August 12th meeting and Sergeant Tom
attended as an
observer. With the two Union representatives, Lindh and Tom in the audience, management
explained the
reasons for a need in the schedule change, and indicated that it was open to ideas from the
staff. The
Local's input was invited, and the Local admitted it had proposals to submit to management,
but would only
do so if management would negotiate. The Local had its chance, but gambled that its
position was right,
and lost out on any

Page 24

Dec. No. 31193-A

opportunity for input short of negotiations. WSPF went above and beyond what was
required by the
Agreement. Over three months notice of the change was given; more than was required in
Article 6/2/2.
An explanation as to the need and reasons for the change in the schedule was offered to the
Union and to
the employees, even though they did not request it.

Respondents assert that as there was no requirement to bargain, they did not refuse to
bargain or
improperly unilaterally implement the schedule change. The record leaves no doubt that the
exception of
Article 6/2/2 is available to Respondents and that "operational needs" were in fact present.
The needs
were reasonably perceived by management and the implementation of the new schedule
eliminated and
eased the perceived problems. Thus, the decision to go to the new schedule was not
arbitrary. The
language of Article 6/2/2 is absolutely clear, and the arbitral decisions leave no doubt,
that the "operational
needs" exception applies in this case and allows changes without negotiations. Thus, there
can be no
violation of SELRA for changing the work schedule without bargaining, and Complainants
have failed to
meet their burden by the requisite standard and prove a violation of
Sections 111.84(1), (a), (b), (d) or (e),
Stats.

Next, Respondents assert that they did not violate SELRA when management met
with the
employees on August 12th. WSPF has a history of working with the Food Service staff with
regard to
changes in the work schedule. In January of 2002, WSPF found it necessary to change the
schedule as
it was going from contract meals to in-house preparation. According to Complainants'
witness Lindh,
management gathered the employees together in Broadbent's office and advised them there
had to be a
change and that the schedule had to include a 10-hour day. The Union had no problem with
this and a
verbal vote was taken while Broadbent and Wayne were present. Thus, the meeting on
August 12
represented a practice that was employed on one other occasion when the schedule needed to
be changed.
There is nothing in the record indicating that the Local objected to management's actions in
January of
2002. Thus, there can be no valid objection to similar conduct in 2004.

Respondents assert that everything management did was out in the open, and the
Local was not
bypassed, nor were there negotiations with employees. Nothing was hid from the employees
or the Local.
They were told that a change had to be made, and given the reasons. Management invited
the Local to
discuss proposals submitted by Lindh and always indicated that it was willing to discuss, but
not negotiate.
Union representatives were invited to the August 12th meeting and one representative and
steward were
present. At that meeting, management again explained the reasons for the needed change,
and why Lindh's
proposal would not meet the "operational needs". It listened as to why employees did not
like the
"officer's" schedule, and advised them that it was willing to take the Food Service
employees' suggestions
and schedules under consideration. Management gave full disclosure for everything at the
meeting, and all
matters were discussed in full view and presence of the Union. At no time did the Local
object to the
holding of the meeting, and at no time during the meeting did it object to management's
statement that it
would consider any schedule suggestions employees had. The meeting was merely
informational.

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Dec. No. 31193-A

There is nothing to support the allegation that WSPF bypassed the Local and
bargained directly
with the employees. First, the Local was advised at every step of the way, and invited to,
and present at
the August 12th meeting. Second, there was no obligation to bargain with the Union. In
merely explaining
and listening to the employee's concerns at a mass meeting, noticed and attended by the
Local, there were
not any negotiations. Third, all WSPF did was listen, and management did not indicate it
would use any
suggestions from employees, but stated only that it would consider them. No promises were
made, and
the Local had the opportunity to tell employees not to provide any suggestions. It also could
have objected
on the spot, but did not do so. There was no coercion, threats or interference with the
employees by
WSPF. There were no offers made by management, nor were there any promises made to
employees.
WSPF merely advised employees that changes had to be made, that there were valid reasons
to do so,
and that WSPF was considering all ideas. That is not negotiations. There was never
anything that would
indicate a give-and-take. Further, since there was no obligation to bargain under the
"operational needs"
provision of the Agreement, and therefore no obligation to negotiate with the Local, there
can be no bypass,
since management could unilaterally implement a new schedule based on the operational
needs. It would
not make sense for management to negotiate with the employees, as it obviously would not
do something
it did not have to do.

There can be no violation of Section 111.84(1)(b), Stats., since there is absolutely no
proof that
there was "interference of a magnitude which threatens the independence of a labor
organization as a
representative of employee interests." The evidence is to the contrary. Similarly, there is no
proof of a
violation of Section 111.84(1)(a), whether as a derivative or as an independent violation.
There is no
showing that any rights in Section 111.82, Stats., had been interfered with, restrained or
coerced. There
were no threats and no coercion, nor were any promises made. There was no evidence of
any conduct
that had a reasonable tendency to interfere with, restrain or coerce employees in their rights.

Respondents also respond to arguments raised in Complainants' brief. First,
Respondents disagree
that Article 6/2/2 of the Master Agreement is restricted to short-term, temporary schedule
changes. There
is no language in the Agreement that restricts the length of any schedule changes. Any
changes are
permitted, including those for more than two weeks or for as long as the "operational needs"
exist. Second,
the arbitral history is contrary to Complainants' position. In the Flagler arbitration, the
schedule change was
permanent, and the arbitrator concluded that the State could make the change based on
"operational
needs" without bargaining. Of particular note in that arbitration is the arbitrator's
observation that WSEU
took the position that the State might contend that the parties must bargain, but that
bargaining was not
required. He further noted that WSEU also took the position that paragraph J on page 109
of the Master
Agreement does not pertain, as Article VI controls. The arbitrator concluded that "These
changes are
governed by management's rights, Article III and by Article VI, Section 1."

Further, the language of the Master Agreement must be read in harmony. To hold as
Complainants
argue would lead to an absurd result. To say that the language of paragraph J

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Dec. No. 31193-A

always requires negotiations when it comes to changes in
schedules would render absolutely meaningless
the clear and unambiguous language of the "operational needs" exception in Section 6/2/2.
Sections 6/2/2
and 11/2/8 (J) have been in the Agreement for many years and have been litigated many
times. A review
of the decisions shows that when the arbitrators discussed the Union's position, there was
never any
mention that the Union contended that negotiations were required even though the
"operational needs"
exception was present in the Agreement. In two of those arbitrations, there is specific
mention that
language identical to paragraph J was in the Agreement, yet there was no contention by the
Union in those
cases that it "trumps" the "operational needs" exception. As noted previously, in the Flagler
arbitration the
Union argued that Article 11/2/8 (J) did not require negotiations because Article VI
controls. In the August
14, 1984 Grenig arbitration, the Union claimed that the employer unilaterally changed the
work schedule
while the parties were in the process of negotiating a different schedule, however, the
arbitrator held that
the "operational needs" exception allowed for a unilateral change without negotiations.

Thus, the arbitral history regarding the "operational needs" exception demonstrates
three points
fatal to the Complainant's position. One, it has never argued that the negotiation language of
Section
11/2/8, paragraph I, trumps the operational needs language. Two, WSEU has previously
contended that
the language of Article VI modifies the negotiation language of paragraph J, the same
position Respondents
take in this case. Three, WSEU has argued, without success, that the "operational needs"
exception does
not apply even when the parties are in the process of negotiating a schedule change, thereby
demonstrating
paragraph J does not trump Article 6/2/2, if "operational needs" exist.

Last, Complainants' contention that local negotiations show that they did not waive
their right to
bargain schedule changes, overlooks several points. One, language in the Local Agreement
specifies that
unless there is specific language in the Master Agreement to the contrary, the Master
Agreement controls.
This means Article 6/2/2 controls and that schedule changes can be made under the Local
Agreement
without negotiations if "operational needs" are present. The argument also ignores the
arbitral history
discussed above.

Regarding remedy, Respondents assert that if there is a finding of a violation for
bypassing the Local
and negotiating directly with employees, only a cease and desist order would be appropriate.
Respondents
cannot take back the meeting or what was said. Further, because the "operational needs"
provision permits
WSPF to unilaterally implement the new schedule, any remedy cannot require or have the
effect of
discontinuing use of the current schedule and reverting back to the old. This means that
WSPF can
unilaterally adopt the current schedule after the decision without bargaining with the Local.
Thus, it makes
no sense to have an Order containing anything other than a prospective cease and desist from
bypassing
the Local and directly negotiating with employees. If there is a finding that the "operational
needs"
provision does not apply or that there was a bypassing of Complainants, Respondents submit
that the only
appropriate remedies would be cease and desist, a requirement that the current schedule be
retained and
the parties be required to bargain for a new schedule. It would be inappropriate,
burdensome and chaotic
to require WSPF to return to the prior 10-

Page 27

Dec. No. 31193-A

hour schedule. Food Service employees have picked their vacations for 2005 based on
the current
schedule. The disruption involved in reverting to the prior schedule would be enormous.
Retaining the
current schedule far outweighs reverting to the prior schedule, especially since there is
testimony that
compared to the prior schedule, employees favor the current schedule.

Complainant's Reply

Complainants first dispute the Respondents' contention that the Unions clearly and
unmistakably
waived their right to bargain over work schedules in agreeing to Section 6/2/2 of the Master
Agreement
and Respondents' reliance on prior arbitration awards to support its position that it had no
duty to bargain,
and therefore did not improperly bypass the Union when it solicited input regarding work
schedules directly
from bargaining unit members. The Mueller Award supports the Union's, rather than the
State's, position.
Contrary to the Respondents' view of the language contained in Section 6/2/2, Arbitrator
Mueller found
that because the language is ambiguous, the "setting of specific parameters" of the
contractual restrictions
on management's right to schedule hours of work "is best left to the parties for free and open
mutual
negotiations. . ." (At page 30). Arbitrator Mueller did not rule that the State could
unilaterally change
work schedules, as he did not expressly address that question. The issue before Arbitrator
Mueller was
whether the employer had violated the agreement when it changed the work schedule of
certain custodians,
which resulted in a reduction in overtime. Arbitrator Mueller also explained that his lengthy
analysis was
the result of Section 6/2/2 being "comprised of so many words of indefinable and
indefinite meaning" and
"of so many conflicting provisions that it literally defies any definitive interpretation by
consistent application
of non-conflicting contract interpretation principles." Thus, supporting Complainants'
position that Section
6/2/2 does not clearly and unmistakably waive their statutory right to bargain over changes in
hours of
work.

Significantly, the case before Arbitrator Mueller concerned the issue of whether the
State changed
schedules due to operational needs or to primarily avoid overtime payments. Arbitrator
Mueller
encouraged the parties to negotiate when they must draw "the precise dividing line" between
proper
changes due to operational needs and improper changes when the primary motivation is to
avoid overtime.
Consistent with his advice that the parties engage in "free and open mutual negotiations"
when they face
conflicting interpretations of the language in Section 6/2/2, Arbitrator Mueller specifically
encouraged the
parties to bargain over when a schedule change is made primarily to avoid the payment of
overtime. Thus,
under the Mueller Award the parties should also bargain when confronted by questions
related to whether
a proposed schedule change is reasonable, or whether it is being arbitrarily made and
therefore in violation
of Section 6/2/2, under which the Union may grieve arbitrary changes. Arbitrator Grenig's
August 14,
1984 decision also indicates that the language of Section 6/2/2 does not release the State
from its duty to
bargain over schedule changes. Arbitrator Grenig followed the Mueller Award when he
ruled that the State
did not violate the agreement when it changed the work schedule for Maintenance Mechanics
due to
operational needs, nothing that the State had asked the Union to bargain, but that the Union
failed to

Page 28

Dec. No. 31193-A

negotiate or provide input when it had the opportunity to do so. Like Arbitrator
Mueller, Arbitrator Grenig
indicated that the Union and the State should resolve conflicting interpretations of the
language in Section
6/2/2 by engaging in timely and good-faith negotiations.

None of the awards cited by the Respondents stand for the principle that the Union
waived its right
to bargain over schedule changes in agreeing to Section 6/2/2. None of the awards
contradict the long-standing Wisconsin public policy that collective bargaining is to be
promoted as the preferred method for
resolving potential disputes. Section 111.80(3), Stats. Under that provision of SELRA, it is
declared that
it is public policy in Wisconsin to engage in collective bargaining over terms and conditions
"where
permitted" by SELRA. The Examiner should reject the State's position that bargaining was
not permitted
because the Union waived its right to bargain over schedule changes. To the contrary, it
negotiated Section
11/2/8 (I), which requests the State to bargain regarding work schedules.

The State's position that it did not improperly bypass the Union because it never
actually negotiated
directly with employees, but merely listened to their suggestions, should also be rejected.
When
management representatives met with all of the available food staff to "talk about" schedule
change options
on August 12th, that conduct constituted unlawful direct negotiations with employees. Under
the definition
of "collective bargaining" in SELRA, to "meet and confer" with employees constitutes
bargaining.
Section 111.81(1), Stats.

Last, contrary to the State's position that this is a case regarding whether its
operational needs
justified a schedule change, the resolution of this case does not require consideration of the
State's
"operational needs"; rather, it concerns whether the State unlawfully refused to bargain,
negotiated directly
with bargaining unit members, and then unilaterally changed work schedules.

Complainants conclude that the State violated Sections 111.84(1)(a), (d) and (e) of
SELRA. The
appropriate remedy for the violations is to find that Respondents committed the prohibited
practices alleged
and order that they rescind the schedule changes and make employees whole for all lost
wages and
benefits, and that they be prohibited from engaging in similar types of unlawful conduct in
the future and
be required to post the appropriate notices, and such other further relief as the Examiner
deems
appropriate.

DISCUSSION

Complainants have alleged that Respondents' actions regarding unilaterally changing
the work
schedules of the Food Service employees at WSPF and refusing to negotiate with
Complainants in that
regard, violated Secs. 111.84(1)(a), (d) and (e), of SELRA. In making determinations
regarding such
allegations, it is appropriate to consider the Commission's

Page 29

Dec. No. 31193-A

decisions under the Municipal Employment Relations Act (MERA), as well as those
under SELRA, as the
relevant provisions of those laws are substantively identical. (1)

As the complaining parties, Complainants have the burden of proving that
Respondents have
committed the alleged violations by a clear and satisfactory preponderance of the
evidence (2)

.

With regard to Sec. 111.84(1)(a), Stats., the Examiner does not read the complaint to
allege an
independent violation of that provision. Thus, any finding in that regard is as to a derivative
violation based
on findings as to the alleged violations of Secs. 111.84(1)(d) and (e), Stats.

111.84(1)(d)

Sec. 111.84(1)(d), Stats., provides, in relevant part, that it is an unfair labor practice
for an
employer individually or in concert with others:

(d) To refuse to bargain collectively on matters set forth in s.
111.91(1) with a
representative of a majority of its employees in an appropriate collective bargaining
unit. . .

An employer who violates its duty to bargain under this provision derivatively
interferes with employees'
rights under Sec. 111.84(1)(a), Stats. (See Green County, Dec. No. 20308-B (WERC,
11/84)).

Complainants allege Respondents violated Sec. 111.84(1)(d), Stats. both by (1)
refusing to bargain
with Complainants and unilaterally implementing the changed work schedule for the Food
Service staff at
WSPF, and (2) individually bargaining with those employees at the August 12, 2004 meeting
by soliciting
and accepting proposals from individual employees.

As to the first allegation, regarding the unilateral change in the work schedule, the
parties stipulated
at hearing that both the Master Agreement and Local Agreement were extended and
continued in effect
during the time in question. The Commission previously set out the law regarding an
employer's duty to
bargain in-term:

We have consistently held that:

(An) employer's duty to bargain during the term of a contract extends to all
mandatory subjects of bargaining except those which are covered by the

Page 30

Dec. No. 31193-A

contract or as to which the union has waived its right to bargain through
bargaining history
or specific contract language. Where the contract addresses the subject of bargaining, the
contract determines the parties' respective rights and the parties are entitled to rely on
whatever bargain they have struck. (Footnote omitted). City of Beloit, Dec. No.
27990-C (WERC, 7/96).

Here, Respondents concede that employees' work schedules constitute "hours" and
are
a
mandatory subject of bargaining, but assert that they acted consistent with their rights under
the parties'
Master Agreement.

For purposes of deciding if the Respondents have a statutory duty to bargain a change
in a work
schedule, it is necessary to determine whether the parties' Master Agreement addresses the
subject.
Article VI, subsection 6/2/2, of the Master Agreement specifically addresses the subject of
changes to
work schedules, and the subject of negotiating work schedules in the Blue Collar bargaining
unit, of which
the WSPF Food Service employees are members, is generally addressed in Article XI,
Subsection 11/2/8,
I. It is therefore not a question of whether Complainants' waived their statutory right to
bargain, having
bargained those provisions addressing work schedules, the Respondents were under no
statutory obligation
to bargain further regarding that subject. The parties' rights and obligations regarding
changing of work
schedules are determined by what they have negotiated into their agreement, and they are not
required to
bargain further in that regard. City of Beloit, supra; School District of Cadott,
Dec. No. 27775-C
(WERC, 6/94); aff'd 197 Wis. 2d 46 (Ct. App., 1995). Hence, Respondents did not violate
Sec.
111.84(1)(d), Stats., by refusing to negotiate with Complainants as to changing the Food
Service
employees' work schedule. Thus, any further duty to negotiate must therefore stem from the
parties'
Agreement. (3)

Complainants also assert that Respondents engaged in individual bargaining with the
Food Service
employees in violation of Sec. 111.84(1)(d), Stats. (4)

The allegation centers around the August 12, 2004
meeting WSPF management held with the Food Service employees. Respondents assert in
their defense
that the August 12th meeting was consistent with the practice that had been
followed on the previous
occasion when the schedule of those employees needed to be changed. In that instance, the
Food Service
employees had been called into Broadbent's office after management had explained to the
Union that the
schedule had to

Page 31

Dec. No. 31193-A

be changed and had to include a 10-hour day. The Union had no problem with this
and the employees
took a voice vote with Wayne and Broadbent present, approving the change. In contrast,
here the Local
Union objected to the change and demanded to bargain numerous times. Broadbent first
went to
O'Rourke and Lindh with the proposed change and they indicated there was a problem and
that the Union
could not agree to the proposed schedule, but O'Rourke indicated the Union would be willing
to negotiate.
O'Rourke followed this up with his July 1, 2004 e-mail to Broadbent, which noted
hours are a mandatory
subject of bargaining and indicated the Union had created a bargaining team and was ready
to negotiate.
Moreover, after Broadbent sent out the notice of the August 12th meeting to
employees and notified
O'Rourke of the meeting, the latter went to Wayne and asked if they were going to negotiate
the schedule.
Wayne responded in the negative. Local 509 Vice-President, Sergeant Tom, and Lindh were
present at
the August 12th meeting and were given the opportunity to provide input
regarding the new schedule, but
not to bargain. In response to questions from Wayne and Broadbent as to whether the Union
had any
suggestions or proposals to make, Tom indicated that the Union did, but that the parties had
to negotiate,
and the Union would produce its proposals when the management sat down to negotiate with
the Union's
team. Wayne responded that management did not have to negotiate.

After stating management would not negotiate with the Union regarding their
schedule, management
subsequently informed the Food Service employees they would have the opportunity
themselves to submit
suggestions and propose schedules, which management would consider in arriving at a new
schedule. It
is at this point that Respondents ran afoul of the law. Even assuming
arguendo that management was
correct that it had the right to change the employees' work schedule under the parties'
Agreement, and
therefore had no duty to bargain in that regard, if, and to the extent, it chose to bargain, it
had to do so with
the Union and could not lawfully deal directly with the employees. City of Milwaukee, Dec.
No.
26354-A (McLaughlin, 4/92), aff'd by operation of law, Dec.
No. 26354-B (WERC, 5/92). To do so
denigrates the exclusive collective bargaining representative status of the Union.

It must also be kept in mind that the Union was attempting to enforce what it
believed
were its rights
under the parties' Agreement. There is no evidence in the record that the Unions have
waived their right
to represent these employees and to administer the contract where the parties have a dispute
about what
their rights are under the agreement. (5)

Absent such a waiver, management must deal with the employees'
exclusive bargaining representative in resolving the dispute, and not directly with the
employees. See
Amery School District, Dec. No. 26138-A (McLaughlin, 2/90), aff'd by
operation of law, Dec.
No. 26138-B (WERC, 3/90).

For these reasons, the Examiner has found that Respondents' actions in soliciting
proposed
schedules directly from the employees in the face of the Unions' objections and demand to
bargain violated
Sec. 111.84(1)(d), Stats.

Page 32

Dec. No. 31193-A

111.84(1)(e)

Sec. 111.84(1)(e), Stats., provides that it is an unfair labor practice for an employer
individually
and in concert with others:

(e) To violate any collective bargaining agreement previously agreed upon
by
the parties with respect to wages, hours and conditions of employment affecting
employees, including an agreement to arbitrate or to accept the terms of an arbitration
award, where previously the parties have agreed to accept such award as final and binding
upon them.

The Commission will not normally exert its jurisdiction over a violation of contract
allegation where
the parties' agreement contains a provision for final and binding arbitration of such disputes;
however, the
Commission has recognized that the parties may waive application of this doctrine. City of
Milwaukee,
Dec. No. 31221-B (WERC, 10/05); Rock County, Dec. No. 29219-B (WERC, 10/98); Pet
Milk
Co., Dec. No. 6209 (WERC, 1/63); Allis-Chalmers Mfg. Co., Dec. No. 8227 (WERB,
10/67). As
noted previously, while Respondents raised the affirmative defense in the answer that
Complainants had
not exhausted their contractual remedies, and moved for deferral at the hearing, once the
Examiner deferred
ruling on the motion, the parties fully litigated their dispute and Respondents did not address
their objection
further at hearing or in their post-hearing brief. The Examiner has presumed from this that
the parties have
anticipated that the Examiner would address the merits of all the alleged violations, including
the allegation
of a violation of Sec. 111.84(1)(e), Stats.

It must be reiterated that having concluded that the parties' Master Agreement
addresses the
subject of work schedules, and specifically changes to work schedules, any requirement that
the parties
negotiate further regarding that subject must be contractual, rather than statutory. (6)

Respondents have asserted that the parties' Master Agreement contains language in
subsection
6/2/2 specifically permitting management to change a work schedule under certain
circumstances without
negotiating the change. They rely primarily upon that provision and Article III, Management
Rights.
Conversely, Complainants point to Article XI, Subsection 11/2/8, I, of the Master
Agreement and assert
that they have not waived their right to bargain over changes to the work schedule of Food
Service
employees in the Blue Collar unit at WSPF, asserting that such a waiver would have to be
"clear and
unmistakable". Complainants further assert that given the conflicting and/or inconsistent
language in the
Agreement, such a clear waiver cannot be found. These arguments, however, slur
Complainants' statutory
rights with their rights under the parties' Agreement. As noted, it is only the latter that is in
issue at this
point. Generally speaking, if the agreement reserves to management the right to take a
particular action,
absent language to the contrary, management is free to take the action without first
negotiating and obtaining
the union's agreement.

Page 33

Dec. No. 31193-A

Article VI, Section 2, 6/2/2, of the Master Agreement, specifically addresses
management's right
to change work schedules. As Respondents assert, Subsection 6/2/2 does not
expressly, nor implicitly,
limit management's authority to only making short-term or temporary changes in a work
schedule. The only
restrictions on management's authority referenced in this provision are that the change be
made to "meet
operational needs of the service", that the change not be made "arbitrarily", that the change
not be made
"to avoid the payment of overtime", and that "insofar as possible" the minimum prior notice
of the change
be given to the local Union and the affected employees. The Union is also expressly given
the right to
grieve "if it feels a work schedule change has been made arbitrarily." There is no reference
in Subsection
6/2/2, whatsoever, regarding negotiations. The only reference at all to bargaining in Article
VI, Section 2,
is in Subsection 6/2/3, which provides:

There is no evidence in the record as to that provision's application to
Subsection 6/2/2, if any.
As noted, it is Article XI, Section 2, upon which Complainants rely, specifically
Subsection 11/2/8, I, which
provides, in relevant part, that, as to certain units, including the Blue Collar unit, "Negotiate
hours of work,
work schedules and overtime assignments. . ." It also provides that either party may appeal
to advisory
arbitration "in the event no agreement is reached." From what the Examiner is able to glean
from the prior
awards cited by the parties, Article XI, Section 2 of the Master Agreement authorizes
"Labor-Management
meetings" and the subsections of that provision list what the parties agree are appropriate
purposes of such
meetings. (7)

However, while Subsection 11/2/8, I, generally addresses these subjects,
Subsection 6/2/2, of the
Master Agreement specifically addresses the authority of management to change work
schedules under
specified circumstances. It is a generally accepted principle that in interpreting a contract,
"Where two
contract clauses bear on the same subject, the more specific shall be given precedence."
Further, "when
an exception is stated to a general principle, the exception shall prevail where it is
applicable." Elkouri and
Elkouri, How Arbitration Works (Fifth Ed.) pp. 498-499.

Complainants also rely upon the references in the section of the Local Agreement
covering these
employees:

Page 34

Dec. No. 31193-A

FOOD SERVICE (BC)

Note: Language in this Food Service Section reflects a 10 hour Workday.

The Vacations provision also references the "current schedule", recognizes that the 10
hour days schedule
allowed employees to have every other weekend off, and requires the first round of vacation
picks be taken
in three day blocks. Complainants assert these references establish that the 10 hour days
schedule was
negotiated by the parties and included in their Local Agreement, and therefore, may only be
changed by
negotiating such a change. Indeed, it appears those provisions were included to recognize
the work
schedule that was in effect at the time this Local Agreement was negotiated; i.e., the 10 hour
days schedule.
However, as Respondents point out, the Local Agreement also provides:

Authority of Master Agreement

Nothing in this local agreement shall be construed to override any contractual
provision in
the master agreement unless specifically allowed by the terms of the master agreement.

There is no provision in the Master Agreement authorizing local agreements to
override Subsection 6/2/2.

Both parties also rely on prior arbitration awards that involved WSEU and the
Respondent State
and the interpretation and application of the provisions or predecessors of the provisions upon
which the
parties rely in this case. Of the five prior awards cited by the parties, all involved an
interpretation of
management's right to change work schedules under Article VI, Subsection 6/2/2,or that
provision's
predecessor, Article VI, Section 1, and the requirements that the change be made to meet
"operational
needs" and not be made to avoid the payment of overtime. Arbitrator Mueller, in his 1981
award,
reviewed the bargaining history of Article VI, Section 1, and concluded that changing the
work schedule
to minimize overtime was a permissible purpose within the meaning of meeting "operational
needs", and
that it was the last-minute change in the middle of the work week to avoid paying employees
overtime in
that week that the parties intended to prohibit. Subsequent arbitrators accepted and agreed
with his
reasoning.

Three of the awards ­ Arbitrator Mueller's 1981 award, Arbitrator Grenig's
August 6, 1984
award, and Arbitrator Ver Ploeg's 1996 award, dealt with temporary changes, while
Arbitrator Grenig's
August 14, 1984 award dealt with a change that was to be in force until more Maintenance
Mechanics
were hired, and Arbitrator Flagler's 1994 award involved a change that was to remain in
effect and not
intended to be temporary.

In only the August 14, 1984 Grenig award did the WSEU and the Local Union raise
an issue
regarding Article XI, Section 2, and the need for negotiations ­ asserting the parties
were in the midst of
negotiating a work schedule when management made the change. Arbitrator

Page 35

Dec. No. 31193-A

Grenig applied the requirements of then-Article VI, Section 1, and as to Article XI,
Section 2, concluded
there was no violation. Arbitrator Grenig reasoned as follows:

Article XI provides that the work schedule provisions of Article VI may be
amended through the procedure specified in Article XI. There is no evidence that a work
schedule agreement has been negotiated between the parties at the time the change was
made in the schedule in 1982. While the Employer had asked for the Union's input in
1982, the testimony at the hearing indicates that the Union did not give its "input" until the
spring of 1983.

The advisory arbitration referred to in Article XI, is "interest" arbitration.
The
advisory arbitration proceeding may be used when the parties are unable to reach
agreement and request an arbitrator to recommend the terms of an agreement. The
negotiations never reached an impasse and, thus, the advisory arbitration provision never
came into play.

The evidence indicates that the Employer invited participation and
recommendations from the Union but that none was tendered prior to October 1982. The
evidence further shows that the changes in the work schedule involved changes required
because of operational necessity. (pages 13-14).

While Arbitrator Grenig notes the State invited the Unions' input and participation, as
Respondents did
here, there is no evidence of negotiations in that case to the degree the Complainants are
insisting is
necessary in this case.

In Arbitrator Flagler's 1994 award, the employer unilaterally changed the work
schedule of
transport officers at the Taycheedah Correctional Institution from 7:00 a.m. ­
3:00 p.m. to 6:00 a.m. ­ 2:00
p.m., and subsequently, to "an eight-hour block of time between the hours of 6:00 a.m. and
6:00 p.m. . .
.", with a start time no later than 10:00 a.m., with five days prior notice of what their
schedule would be.
The changes were not intended to be short-term (although the first change only lasted two
months) and only
the last change was challenged. The WSEU and the local Union did not argue the need for
negotiations
pursuant to Article XI, Section 2, Subsection J (virtually identical to Subsection I); rather,
the Unions
asserted another provision of Article VI pertaining to "alternative work patterns" applied, the
Unions
arguing that such alternative work patterns could only be implemented by mutual agreement
of the parties.
Arbitrator Flagler reviewed Arbitrator Mueller's award in depth as to Article VI, Section 1,
and concluding
that the schedule was not an "alternative work pattern", held that the changes "are governed
by
Management Rights Article III and by Article VI, Section 1." (8)

Page 36

Dec. No. 31193-A

As the parties recognize, as this is a breach of contract allegation, how arbitrators
have previously
interpreted the same language in the parties' Agreement is relevant in determining the
parties' respective
rights and obligations under substantially the same language in this instance. This is
especially so where they
have had the opportunity to alter that language in agreements arrived at subsequent to those
awards.

A number of things are apparent from those prior awards. First, the subsequent
arbitrators agreed
with Arbitrator Mueller's reasoning and his conclusions that changing work schedules to
minimize the need
for overtime was permissible as meeting "operational needs", and consistent with the Article
III
management right "To utilize personnel, methods, and means in the most appropriate and
efficient manner
possible. . .", and that to do so did not fall within the prohibition regarding avoiding the
payment of overtime
in Article VI, Section 1, and its successor, Subsection 6/2/2. Second, application of Article
VI, Section
1, or its successor, Subsection 6/2/2, was not restricted to only temporary, short-term
changes. Third, in
only one of the cases did the Unions assert management was obligated to negotiate changes
in the work
schedule, and Arbitrator Grenig found no violation of Article XI, Section 2, even though the
change was
made without negotiations and without the Unions' agreement.

As Arbitrator Grenig noted in his August 14, 1984 award, the parties' having entered
into a
collective bargaining agreement containing language identical to that which was construed by
an arbitrator,
following the issuance of his arbitration award, indicates that there is no basis for disturbing
that prior
interpretation of the language. While, as Complainants assert, both Arbitrator Mueller and
Arbitrator
Grenig encouraged the parties to bargain over inconsistencies in the language of Subsection
6/2/2's
predecessor by engaging in good faith negotiations, the Examiner understands those
arbitrators to be urging
the parties to negotiate contract language that more clearly spells out what is or is not
permitted by
Subsection 6/2/2. The Examiner heartily concurs.

Both parties also cite past instances of changes to work schedules to employees in the
Blue Collar
unit at WSPF to support their positions. It is apparent from Arbitrator Grenig's
August 14,1984 award,
and from what has occurred in the past, that the parties have differing views as to whether
they were
"negotiating" or "discussing" such changes. The record indicates that in 2001, WSPF
management came
to the Local Union and said they needed to create a second shift for the Custodial staff, with
half working
one shift and half working the other. According to O'Rourke, the Local looked at the
proposed schedule
and agreed and submitted the proposal to the Custodians to look at, and they then took a vote
and
approved the change. Similarly, in 2002 management approached the Local with a need to
change the
work schedule from 8 hour to 10 hour days for the Food Service staff. The Local did not
see a problem
with it, and the Food Service staff were called into Broadbent's old office and they then took
a voice vote,
approving the change. From Broadbent's perspective, however, management decided the
change to 10
hour days was needed due to a change in operations and he and Wayne met with the Local
Union to make
them aware of it. In late 2003, management approached a steward in the Local Union and
advised him
that due to turnover in the Custodial staff, there was not enough staff to cover two shifts, so
they were going
to go back to a single

Page 37

Dec. No. 31193-A

8 hour shift for all Custodians. O'Rourke conceded there were no negotiations and no
vote among staff
was taken, but testified that the understanding was that it was only a "temporary" change
until more
Custodians could be hired. However, he also conceded that as of the time of hearing in this
case (March,
2005), the single shift schedule remained in effect.

It appears from the foregoing that in those past instances management informed the
Local Union
of the need to change the employees' work schedule, and the Union, not having a problem
with the change,
submitted it to the employees to approve, which they did. There was no give and take or
counterproposals
from the Union in either instance. In the third and most recent prior instance, management
advised the
Local Union that the change was being made and why, and implemented the change without
further action
or input from the Union. Absent that give and take that is the normal component of
negotiations, it is
difficult to conclude that the parties mutually understood they were engaging in negotiations.
From
management's perspective, they were informing the Union of the need for the change, and
the Union was
not challenging it. It is not clear that what happened in the instant case is any different from
the prior
instances, except that, in this case, the Union was not willing to accept the change in the
schedule
management initially proposed to make. Given the ambiguity of the "practice", the
Examiner is not willing
to conclude that the parties have historically negotiated such changes in the work schedules.

The Examiner concludes that Article VI, Subsection 6/2/2 of the Master Agreement
specifically
authorizes management to unilaterally change the Food Service employees' work schedule,
provided the
change is to meet the operational needs of WSPF, is not made arbitrarily, and is not made to
avoid the
payment of overtime, as the latter has been previously construed by the parties' prior
arbitration awards.
Absent language in the provision indicating otherwise, it is presumed management's authority
to change the
schedule is not dependent upon obtaining the Unions' prior agreement before it can
implement the change,
when those conditions are met.

In this case, Wayne's and Broadbent's testimony establishes that the change was
made
to reduce
the amount of overtime hours worked by Food Service staff, to reduce safety risks by not
having Food
Service staff working 10 or more hours per day in the kitchen and not having to utilize
non-Food Service
employees to fill in in the absence of Food Service staff, to avoid the problems of employees
not wanting
to fill in on weekends due to cliques that had formed under the old schedule, to decrease the
use of
Styrofoam containers and to accommodate employee vacations, which were about to increase
for many
of the staff. Lindh, a Food Service employee and a steward in the Blue Collar unit, agreed
for the most
part that these were problems. The evidence indicates that overtime among the Food Service
staff
decreased substantially after the new schedule was implemented. Wayne also testified that
there is more
coverage on the weekends under the new schedule and that staff do not have to work as
many hours in
a row, so that the safety risk has been reduced. Thus, it is concluded that the schedule was
changed to
meet the operational needs of the institution. As Arbitrator Grenig recognized in his August
14, 1984
Award, "Since the change was made to meet the operational needs of the service. . .there
was a reason
for the change and it was not arbitrary. . ."

Page 38

Dec. No. 31193-A

As the Union and the affected employees were notified by Wayne's August 26, 2004
memorandum
as to the change in the work schedule, and the change was not implemented until late
December of 2004,
or at the earliest, when the Food Service employees made their 2005 vacation picks in
November of 2004,
the five calendar day prior notice requirement of Subsection 6/2/2 was met.

Based on the foregoing, it is concluded that Respondents did not violate the parties'
collective
bargaining agreement, and therefore, did not violate Sec. 111.84(1)(e), Stats., when WSPF
management
unilaterally changed the work schedule of the Food Service employees at WSPF to meet the
operational
needs of the Institution, as discussed above, and upon prior notice of the change to the
employees and the
Unions. (9)

Remedy

While the Examiner has found Respondents violated Sec. 111.84(1)(d), and
derivatively, (1)(a),
Stats., by individually bargaining with the Food Service staff at WSPF, having also
concluded that
Respondents were not obligated to bargain with Complainants regarding changing the work
schedule of
those employees in the instant situation, it is concluded that a cease and desist order and the
posting of the
notice indicating Respondents will not bargain individually with its employees who are
represented by
Complainants appropriately and adequately addresses the violation.

3 In this regard, the Commission has
held that where the contract addresses the subject and contains a grievance
procedure with final and binding arbitration, and the alleged refusal to bargain is based upon
a unilateral change, the
alleged violation is appropriately deferred to the parties' arbitration procedure for resolution
of the parties' rights where
the respondent has objected to the Commission's exercising its jurisdiction. As noted at the
outset, while Respondents
made such an objection, they subsequently dropped the objection after the Examiner deferred
ruling on their motion.
Therefore, the parties rights and obligations under the Agreement are addressed subsequently
in this decision.

4 As the allegation of
individual bargaining would not likely be resolved by determination of the parties'
contractual
rights in arbitration, deferral of this alleged violation of Sec. 111.84(1)(d), Stats., would not
be appropriate.

5 While Section 6/2/2
of the Master Agreement provides that employees may voluntarily agree to a change with
management's approval, Respondents have not asserted that language is implicated here.

6 If the Respondents'
actions are consistent with their rights under the Agreement, it is, of course, not a unilateral
change, and Sec. 111.84(1)(d), Stats., would not be implicated.

8 It is clear
Arbitrator Flagler was referring to Article VI, Subsection 6/2/2, cited as the relevant contract
language in his
award, instead of its predecessor, Article VI, Section 1, which Arbitrator Mueller had
applied.

9 It is expressly noted that this decision only addresses the Respondents'
obligations and rights in changing
an existing fixed or posted work schedule without bargaining with the Complainants as to
that change. The
Examiner does not read the instant complaint, filed on October 27, 2004, to address
Complainants' right
to bargain as to work schedules outside those circumstances, and there is no evidence in the
record of a
demand to bargain in that regard following implementation of the change.